December 11, 2012

Judge Mulls Whether to Keep Alive Former CIA Officer's Suit

A former covert CIA officer who claims the agency disseminated false information about him, thwarting an employment opportunity with a defense contractor, could get a chance to further probe his allegations.

A federal trial judge in Washington said at a recent hearing in the case that he was inclined to allow the officer—identified in court papers only as "Peter B."—the opportunity to conduct limited discovery in his lawsuit.

“Any discovery, even if just limited, is a significant step forward in cases against the CIA," Mark Zaid, the lawyer representing the former officer, said after the hearing. "The agency is so secretive it can usually avoid discovery. Any step that allows us to peek inside its dark world renders it vulnerable."

The judge, Frederick Scullin Jr., a senior judge from the Northern District of New York who took over the case for a Washington judge last year, expressed some surprise over the lack of any discovery in the case. At the hearing, Scullin asked Zaid to file papers addressing material facts he believes are still in dispute.

Scullin didn't rule on the U.S. Justice Department's request to terminate the case on the ground that there's nothing in dispute. A DOJ lawyer, Marcia Sowles, senior counsel in the Civil Division, described the officer's legal challenge as a "fishing expedition."

The CIA, Sowles said, never made any public statements that damaged the officer's reputation. Sowles said the officer's contract "simply expired." The officer, she said in court, fully understood that.

"The speculation that such public disclosures have been made ignores the classified nature of his employment," DOJ lawyers said in the government's summary judgment papers. "Furthermore, the CIA has no record of any inquiries from government contractors or other prospective employers regarding plaintiff."

The lawsuit said the CIA terminated the officer in 2002 and that he was never given a reason other than for "the convenience of the government." The scope of the plaintiff's role for the agency is classified. (The lawyers in the case dispute the plaintiff's employment status at the time of his separation from the CIA.)

"Peter B. was never provided any administrative remedies to challenge the CIA's actions to terminate his employment, which, as a federal employee, he was entitled to pursue," the suit against the spy agency said.

Zaid, who often represents intelligence and national security officials, said in court at the hearing on December 7 that the CIA disclosed information in 2006—the substance is unknown—to the Virginia-based defense contractor Abraxas Corp. The firm then didn't hire the former officer.

In court, Scullin said "the facts haven't been developed. You can't decide questions of fact unless you know what those facts are."

Scullin told Zaid to file court papers that address the things he believes are contested. Zaid told the judge he'd have no problem writing and submitting that document. But, he cautioned, the CIA must first look at the paperwork before it can be filed with the court.

The procedural hoops troubled Scullin. "This is ridiculous," the judge said at one point, noting that he wasn't asking Zaid to file any classified information. The judge called CIA lawyer Anthony Moses to the podium.

When Scullin asked Moses how long it'd take the CIA's publication review board to look at Zaid's prospective court filing, to make sure it doesn't disclose any classified information, Moses said he was unsure given all the other work in that office.

At that point, Scullin, told Moses that the CIA doesn't need more than a week to look at Zaid’s court document. If there's any problem with that, Scullin said, "have your boss call me."